Corrigan v. Janney, 80-198

• Decision Date: 10 April 1981
• Docket Number: No. 80-198,80-198
• Citation: 192 Mont. 99,38 St.Rep. 545,626 P.2d 838
• Parties: Carmen CORRIGAN, Individually and as Personal Representative of the Estate of Max Morris Corrigan, Deceased, Plaintiff and Appellant, v. W. P. JANNEY and Kay Janney, His wife, and Janney Trucking Co., a Montana Corporation, Defendants and Respondents.
• Court: Montana Supreme Court

Page 838

626 P.2d 838

192 Mont. 99

Carmen CORRIGAN, Individually and as Personal Representative of the Estate of Max Morris Corrigan, Deceased, Plaintiff and Appellant, v. W. P. JANNEY and Kay Janney, His wife, and Janney Trucking

Co., a Montana Corporation, Defendants and

Respondents.

No. 80-198.

Supreme Court of Montana.

Submitted Jan. 12, 1981.

Decided April 10, 1981.

Knight, Dahood, McLean & Everett, Anaconda, David M. McLean argued, Anaconda, for plaintiff and appellant.

Poore, Roth, Robischon & Robinson, Butte, James A. Poore, Jr., argued, Butte, for defendants and respondents.

HARRISON, Justice.

Plaintiff Carmen Corrigan, as personal representative, filed this action in the District Court to recover damages for wrongful death and survival. Defendants, W. P. Janney and Kay Janney, answered by denying the allegations of the complaint, alleging three defenses: (1) failure to state facts sufficient to constitute a claim for relief; (2) assumption of risk; and (3) contributory negligence. A motion for summary judgment was filed on behalf of the Janneys.

Defendants' motion for summary judgment was based on the theory that no valid claim for relief was stated in the complaint based upon previous interpretations of a Montana statute by the Supreme Court of Montana. Sections 42-201 and 42-202, R.C.M.1947; Dier v. Mueller (1917), 53 Mont. 288, 163 P. 466. The District Court granted the motion for summary judgment on this contention because "... the Court believes it has no alternative but to follow the mandates of the Supreme Court in this regard ..." The present appeal is based upon this portion of the order granting the motion for summary judgment.

The issue presented for review is simply: Was the granting of the motion for summary judgment filed by defendants Janney proper? More specifically, should this Court reverse its longstanding rule on the doctrine of "deduct and repair" and thereby allow an action for damages for personal injuries sustained by a tenant against the landlord?

Janney Trucking Company was the owner of a rental house located at Janneyville, about four miles west of Garrison, Montana. During 1973 the house was rented to Max Morris Corrigan and his wife, Carmen Corrigan, by Kay Janney on behalf of Janney Trucking Company.

The Corrigans alleged they received electrical shocks when they touched a portion of the plumbing system from the day they occupied the premises. Numerous guests in the house also received electrical shocks from touching portions of the plumbing system. Appellant contends she and her husband requested the Janneys to inspect the electrical system and to have it repaired, but the Janneys did nothing.

A tenant who occupied the same house prior to the Corrigans also repeatedly reported electrical shocks from the plumbing system to the Janneys. When they refused to make the necessary repairs, this tenant moved out.

On February 2, 1974, while the Corrigans were taking a bath, appellant contends that Max Corrigan came in contact with the faucet on the bathtub and received an electrical shock which ultimately caused his death.

The house was later inspected by Earl D. Roberts, a State of Montana electrical inspector. The house was condemned until such time as it was wired safely. Roberts noted that if the electrical system had been properly grounded and banded to the plumbing system, the circuit breaker would have opened.

Wayland Smith, a master electrician, testified that if the house had been properly grounded, the circuit breaker should have tripped and the accident would have been avoided.

Previously this Court has maintained that there is no implied warranty of habitability in residential leases; that a tenant chooses either to repair the defect by deducting one month's rent or to vacate the premises if the defect continues. Landt v. Schneider (1904), 31 Mont. 15, 77 P. 307; Busch v. Baker (1915), 51 Mont. 326, 152 P. 750. Further, this Court has denied recovery against the landlord for personal injury to a tenant, holding that the "repair and deduct" statute is the exclusive remedy. Dier v. Mueller (1917), 53 Mont. 288, 163 P. 466.

In 1977 the legislature enacted the Residential Landlord and Tenant Act. Sections 70-24-101 through 70-24-442, MCA. This Act adopts the doctrine of implied warranty of habitability which allows recovery of damages in cases involving injury to tenants from dangerous latent defects in residential rental property. However, the provisions of the Act cannot be made retroactive to apply to cases prior to 1977. See Chap. 313, Section 47, Laws of Mont. (1977). Therefore, we must look to the case law of this State prior to the enactment.

In Dier v. Mueller, supra, this Court applied the "repair and deduct" statute to a claim by a tenant against the landlord for personal injuries. In Dier, the trial court, in granting summary judgment, noted that it was bound by Busch v. Baker (1915), 51 Mont. 326, 152 P. 750. Quoting from Busch, we stated:

" '... This construction is to the effect that, if the landlord fails to repair, after notice, the tenant may himself repair within a certain limit, or move out; but he has no redress in damages for injury to person or property consequent upon the landlord's failure to repair...' " Dier, 163 P. at 467. (Emphasis added.)

It should be noted that the statement with regard to the absence of redress for injury was dictum in Busch. Busch involved a suit for unlawful detainer of the premises, not personal injury. In Dier this Court failed to distinguish between a claim for personal injury and damages to a leasehold interest. We now find that the Court erred, and we overrule the holding as not being applicable to cases involving tenant suits for personal injuries against a landlord. It is unnecessary to overrule our holding in Lowe v. Root (1975) 166 Mont. 150, 531 P.2d 674, because Lowe involved a contract action arising out of damages to the leasehold interest and, further, because we are not deciding this case on breach of implied warranty of habitability.

We need not here trace the historical developments of the repair and deduct doctrine or the doctrine of caveat emptor as applied to tenants of rental residences. Courts in other jurisdictions have adequately traced those developments. See Mease v. Fox (Iowa 1972), 200 N.W.2d 791; Green v. Superior Ct. of City & Cty. of San Francisco (1974), 111 Cal.Rptr. 704, 10 Cal.3d 616, 517 P.2d 1168. The same conclusions reached by these courts are applicable here: today's urban tenants are interested, not in the land, but in a house suitable for human occupation. The residential tenant rents a place to live. The common-law doctrine of caveat emptor does not apply in these contemporary settings.

Art. II, § 16, 1972 Mont.Const., provides:

"The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character ..."

It would be patently unconstitutional to deny a tenant all causes of action for personal injuries or wrongful death arising out of the alleged negligent management of rental premises by a landlord. If this action were to be taken away, a substitute remedy would have to be provided. Arguably, the repair and deduct statute provides an alternative remedy for damage to the...